Common use of Obsolescence Termination Clause in Contracts

Obsolescence Termination. Unless a Lease Default or a Lease Event of Default shall have occurred and be continuing, the Lessee shall have the right, on the terms and subject to the conditions contained in this Article VI, at its option at any time on at least one hundred eighty (180) days prior written notice (a "Notice of Article VI Termination") to the Lessor, the Agent and the Lenders, to terminate this Lease as to all (but not less than all) of the Equipment (the "Article VI Termination Date") on or after the fifth anniversary of the Lease Commencement Date, if such Item or Items shall have become Obsolete. During the period commencing with the date on which such Notice of Article VI Termination is given until the Article VI Termination Date, the Lessee, as agent for the Lessor, shall use its best efforts to obtain cash bids for the purchase of the Equipment. The Lessor shall also have the right to obtain cash bids for the purchase thereof, either directly or through agents other than the Lessee. The Lessee shall certify to the Lessor in writing the amount and terms of each bid received by the Lessee and the name and address of the Person submitting a bid (which Person shall not be the Lessee or any Affiliate of the Lessee but may be the Lessor). On the Article VI Termination Date, the Lessor shall (subject to receipt of the sale price and all additional payments specified in the next sentence), without recourse or warranty but free and clear of Lessor Liens and the lien of the Loan Agreement (if and to the extent the Lenders are required to release the same), sell the Equipment for cash to the bidder which shall have submitted the highest bid prior to such date and the Lessor shall be released from all obligations with respect to the Equipment. The total sales price realized at such sale shall be retained by the Lessor pursuant to this Lease, and, in addition, on the Article VI Termination Date, the Lessee shall pay to the Lessor (or, in the case of Supplemental Rent, the Person entitled thereto) (i) the excess, if any, of the Termination Value of the Equipment over

Obsolescence Termination. Unless a Lease Default or a So long as no Lease Event of ------------------------ Default shall have has occurred and be is continuing, the Lessee shall have the right, on the terms and subject to the conditions contained in this Article VISection 6.1, at its option (i) at any time during the period commencing on the date which is the first day of the sixth (6th) lease year and ending on the last day of the tenth (10th) lease year, and (ii) at any time during the period commencing on the date which is the first day of the eleventh (11th) lease year and ending on the last day of the eighteenth (18th) lease year so long as such exercise under this clause (ii) shall not have caused the Lessee to have terminated for obsolescence more than three (3) of the properties subject to this Lease and the Other Leases, in each case on at least one hundred eighty twenty (180120) days days' irrevocable (subject to the second succeeding paragraph) prior written notice (a "Notice of Article VI Termination") to the Lessor, the Agent and the Lenders, to terminate this Lease as to all (but not less than all) of the Equipment on any Rent --------------------- Payment Date (the "Article VI Termination Date") on ), if the Property shall have become ---------------- Obsolete or after if Lessee shall have made a good faith determination, such good faith determination to be evidenced by an Officer's Certificate delivered to the fifth anniversary Lessor, to the effect that disposition of the Property is necessary or advisable for purposes of complying with Applicable Laws and Regulations. In connection with and at the time of delivery of any Notice of Termination, Lessee shall deliver to Lessor an appraisal of the then-current Fair Market Sales Value of the Property free and clear of the Lease Commencement Date(the "Appraisal") determined in accordance with the Appraisal Procedure. During the period commencing on the date of receipt by Lessor of the Notice of Termination and ending on the date on which Lessor is no longer entitled to provide a Retention Election, if such Item the Lessor, but not the Lessee, shall be entitled, directly or Items shall have become Obsoletethrough one or more agents, to seek bids for the sale of the Property. During the period commencing with the date on which such Notice of Article VI Termination the Lessor is given no longer entitled to provide a Retention Election until the Article VI Termination Date, the Lessee, as non-exclusive agent for the Lessor, shall use its best efforts undertake on behalf of the Lessor to obtain cash bids for the purchase of the EquipmentProperty. Prior to solicitation of any such bids, the Lessee and the Lessor shall agree on a form of contract of purchase relating to the Property acceptable to the Lessor. The Lessee may use a third party as its agent in connection with any such sale. In connection with so acting as Lessor's agent, Lessee may, by written notice to Lessor shall also have delivered no less than fifteen (15) days after expiration of the right period during which Lessor is entitled to obtain cash bids for provide a Retention Election, extend the purchase thereof, either directly or through agents other Termination Date to any Rent Payment Date not more than two hundred seventy (270) days from the LesseeTermination Date initially designated in the Notice of Termination. The Lessee shall certify to the Lessor in writing the amount and terms of each bid received by the Lessee and the name and address of the Person submitting a bid (which Person shall not be the Lessee, any Affiliate of the Lessee, or any Person with an agreement to allow Lessee or any Affiliate of Lessee to use the Lessee Property at any time during the three (3) year period following any such termination but may be the Lessor). On Unless Lessor should have delivered a Retention Election, on the Article VI Termination Date, the Lessor shall Date (subject to receipt of the sale net sales price and all additional payments and instruments specified in the next succeeding sentence), (i) the Lessee shall deliver possession of the Property to such highest bidder, and (ii) the Lessor shall, on an "as is, where is" basis and without recourse to or warranty but free and clear by the Lessor, except as to the absence of Lessor Liens and the lien of the Loan Agreement (if and subject to the extent the Lenders are required to release the same)same disclaimers as set forth in Section 7.1, simultaneously therewith sell the Equipment for cash to the bidder which shall have submitted the highest bid prior Property to such date and highest bidder, the Lessor shall be released from all obligations with respect to the Equipment. The total sales net selling price realized at such sale shall to be retained by the Lessor pursuant to this Lease, and, in Lessor. In addition, on the Article VI Termination Date, the Lessee shall deliver to Lessor an instrument in which Lessee agrees not to, and not to permit any Affiliate to, directly or indirectly use the Property during the three (3) year period following the Termination Date and shall pay to the Lessor the sum of (or, in the case of Supplemental Rent, the Person entitled thereto) (iA) the excess, if any, of the Termination Value determined as of the Equipment overTermination Date over the net sales price of the Property paid to the Lessor pursuant to the preceding sentence, plus (B) all accrued and unpaid Basic Rent as of the Termination Date, if any, plus (C) any Make-Whole Amount, plus (D) any Additional Rent then due. Notwithstanding the foregoing, the Lessor may elect to retain, rather than sell, its interest in the Property by giving irrevocable notice to that effect to the Lessee provided that such irrevocable notice (a "Retention -------- --------- Election") is given no later than one hundred twenty (120) days after the -------- receipt of the Notice of Termination. If the Lessor elects to retain its interest in the Property pursuant to this paragraph, on the Termination Date the Lessee shall deliver possession of the Property to Lessor or Lessor's designee and the Lessee shall pay to the Lessor or to whoever is entitled thereto, on the scheduled Termination Date, the amount set forth in clauses (B) and (D) of the preceding paragraph. Anything in this Section 6.1 to the contrary notwithstanding, the Lessee shall have the right to revoke any Notice of Termination on not more than two (2) occasions during the Lease Term if, with respect to each such occasion, during the period in which the Lessee had the right to serve as agent for the Lessor to obtain cash bids either (i) there were no cash bids or (ii) all such cash bids were for an amount less than 90% of the Fair Market Sales Value of the Property as set forth in the Appraisal. Lessee shall pay the Lessor's reasonable expenses incurred in connection with the rescinded termination or incurred in connection with the completed termination. If an acceptable bid for the Property shall not have been obtained or if a sale shall not have occurred on or as of the Termination Date, then this Lease shall continue in full force and effect until an acceptable bid is obtained and a sale shall have occurred. If the Lessee shall fail to pay all amounts due under and pursuant to this Section 6.1 on the scheduled Termination Date, no sale shall be consummated, this Lease shall continue in full force and effect and it shall be deemed that Lessee has revoked its Notice of Termination. Upon compliance by the Lessee with the provisions of this Section 6.1, the obligation of the Lessee to pay Basic Rent after the Termination Date shall cease, the Lease Term shall end and the obligations of the Lessee hereunder (other than any such obligations expressly surviving termination of this Lease) shall terminate as of the Termination Date. The Lessor shall be under no duty to solicit bids, to inquire into the efforts of the Lessee to obtain bids or otherwise to take any action in connection with any such sale other than to sell its interest in the Property as provided above.

Obsolescence Termination. Unless a Lease Default or a Lease Event (a) If the Senior ------------------------ Management and/or the Board of Default Directors of Lessee shall have occurred and be continuingdetermined in good faith that the Equipment has become technologically obsolete and/or is no longer economically viable, the Lessee shall have the right, on the terms and subject to the conditions contained in this Article VI, at its option at any time on at least one hundred eighty (180) days prior written notice (a "Notice of Article VI Termination") to the Lessor, the Agent and the Lenders, right to terminate this Lease as to all (but not less than all) on any Basic Rent Payment Date occurring on or after the sixth anniversary of the Equipment Closing Date that is specified by Lessee (the a "Article VI Termination Date") on or after in a notice to ---------------- the fifth anniversary Lessor (a "Termination Notice") given not later than 60 days prior to the ------------------ proposed Termination Date and accompanied by a certificate of the Lease Commencement Datea Responsible Officer of Lessee evidencing such determination. Subject to paragraph (c) of this Section 8.03, if such Item or Items shall have become Obsolete. During the period commencing with the date on which such Notice of Article VI Termination is given until the Article VI Termination Date, the Lessee, as agent for the Lessor, shall use its best commercially reasonable efforts to obtain cash bids for the purchase of the Equipment. The Lessor shall also have the right to obtain cash bids for the purchase thereof, either directly or through agents other than the Lessee. The Lessee shall certify to the Lessor in writing the amount and terms of each bid received by the Lessee and the name and address of the Person submitting a bid (which Person who submitted such bid. Lessor and Owner Participant shall not be have the right to obtain such cash bids, in either case either directly or through agents other than Lessee. Neither Lessee or nor any Affiliate of Lessee shall, directly or indirectly, submit a bid for, or enter into any arrangement to acquire title to or an interest in or the Lessee but may be the Lessor). On the Article VI Termination Dateright to use, the Equipment or any part thereof. (b) Subject to paragraph (c) of this Section 8.03, on the Termination Date Lessor shall (subject to receipt of the sale price and all additional payments specified in the next sentence)transfer, without recourse or warranty but free and clear (except as to the absence of Lessor Liens Liens), and the lien on an "as-is, where-is" basis, all right, title and interest of the Loan Agreement (if Lessor in and to the extent Equipment to or at the Lenders are required to release direction of the same), sell the Equipment for cash to the bidder which Person who shall have submitted the highest cash bid prior to the Termination Date, and shall furnish to or at the direction of such date Person, and at the Lessor expense of Lessee, one or more bills of sale, in form and substance reasonably satisfactory to such Person, evidencing such transfer. The net proceeds of such transfer shall be released from all obligations with respect paid to the Equipment. The total sales price realized at such sale shall be or retained by the Lessor pursuant to this LeaseLessor, and, in addition, on the Article VI such Termination Date, the Date Lessee shall pay to the Lessor (or, in the case of Supplemental Rent, to the Person or Persons entitled thereto) (i) an amount equal to the excess, if any, of (A) the higher of (I) the Stipulated Loss Value of the Equipment, computed as of such Termination Date, and (II) the Fair Market Sale Value of the Equipment overas of such Termination Date, over (B) such net proceeds, (ii) the Basic Rent for the Equipment payable on such date and (iii) all other Basic Rent and Supplemental Rent then due hereunder. If for any reason (other than default by Lessee or the applicability of paragraph (c) of this Section 8.03) the transfer of the Equipment to the highest bidder does not occur on or as of such Termination Date, then this Lease shall continue in full force and effect in accordance with its terms (including the terms of this Section 8.03). Lessor shall be under no duty to solicit bids, to inquire into the efforts of Lessee to obtain bids or otherwise to take any action in connection with any such proposed termination of this Lease other than to transfer the Equipment to the Person named in the highest bid certified by Lessee to Lessor or obtained by Lessor against receipt of the payments provided for herein. Lessee shall pay all reasonable expenses of Lessor and Owner Participant incurred in connection with any termination pursuant to this Section. (c) Notwithstanding the provisions of paragraphs (a) and (b) of this Section 8.03, upon receipt of a Termination Notice, Lessor shall have the option, by irrevocable written notice to Lessee given no later than 30 days after receipt of such Termination Notice, to elect to retain the Equipment, in which case on the relevant Termination Date Lessee shall deliver the Equipment to Lessor in accordance with Article XVI hereof and pay to Lessor (or, in the case of Supplemental Rent, to the Person or Persons entitled thereto), in lieu of the amounts payable under paragraph (b) above, (i) an amount equal to the excess, if any, of (A) the Stipulated Loss Value of the Equipment, computed as of such Termination Date, over (B) the Fair Market Sale Value thereof as of the Termination Date (as determined by the Appraisal Procedure promptly upon exercise of such option), (ii) the Basic Rent for the Equipment payable on such date and (iii) all other Basic Rent and Supplemental Rent then due hereunder. (d) Upon payment by Lessee of all amounts payable by it under this Section 8.03, all obligations of Lessee hereunder to pay Basic Rent for the Equipment, and the Lease Term, shall terminate. (e) Notwithstanding any other provision of this Article VIII, Lessee may, by notice to Lessor, revoke any Termination Notice previously delivered at any time prior to the Termination Date specified in such Termination Notice, but such right of revocation may not be exercised with respect to more than a total of three Termination Notices.

Obsolescence Termination. Unless a Lease Default or a So long as no Lease Event of ------------------------ Default shall have has occurred and be is continuing, the Lessee shall have the right, on the terms and subject to the conditions contained in this Article VISection 6.1, at its option at any time during the period commencing on the date which is the first day of the eleventh (11th) lease year and ending on the date that is at least fifteen (15) months prior to expiration of the Basic Term, on at least one hundred eighty twenty (180120) days days' irrevocable (subject to the second succeeding paragraph) prior written notice (a "Notice of Article VI Termination") to the Lessor, the Agent and the Lenders, to terminate --------------------- this Lease as to all (but not less than all) of the Equipment on any Rent Payment Date (the "Article VI Termination ----------- Date"), if the Property shall have become Obsolete or if Lessee shall have made ---- a good faith determination, such good faith determination to be evidenced by an Officer's Certificate delivered to the Lessor, to the effect that disposition of the Property is necessary or advisable for purposes of complying with Applicable Laws and Regulations. In connection with and at the time of delivery of any Notice of Termination, Lessee shall notify Lessor of its election to (x) on make a rejectable offer to cause the Property to be sold as hereinafter provided or after (y) make a termination payment equal to an amount equal to the fifth anniversary sum of the remaining Basic Rent Payments that would have been due to the Lessor through the Basic Term had this lease continued in full force and effect from the Termination Date to the end of such Basic Term (the "Basic Term Rent Amount"). If the Lessee shall have chosen the option described in clause (x) above, in connection with and at the time of delivery of any Notice of Termination, Lessee shall deliver to Lessor an appraisal of the then-current Fair Market Sales Value of the Property free and clear of the Lease Commencement Date(the "Appraisal") determined in accordance with the Appraisal Procedure. During the period commencing on the date of receipt by Lessor of the Notice of Termination and ending on the date on which Lessor is no longer entitled to provide a Retention Election, if such Item the Lessor, but not the Lessee, shall be entitled, directly or Items shall have become Obsoletethrough one or more agents, to seek bids for the sale of the Property. During the period commencing with the date on which such Notice of Article VI Termination the Lessor is given no longer entitled to provide a Retention Election until the Article VI Termination Date, the Lessee, as non-exclusive agent for the Lessor, shall use its best efforts undertake on behalf of the Lessor to obtain cash bids for the purchase of the EquipmentProperty. Prior to solicitation of any such bids, the Lessee and the Lessor shall agree on a form of contract of purchase relating to the Property acceptable to the Lessor. The Lessee may use a third party as its agent in connection with any such sale. In connection with so acting as Lessor's agent, Lessee may, by written notice to Lessor shall also have delivered no less than fifteen (15) days after expiration of the right period during which Lessor is entitled to obtain cash bids for provide a Retention Election, extend the purchase thereof, either directly or through agents other Termination Date to any Rent Payment Date not more than two hundred seventy (270) days from the LesseeTermination Date initially designated in the Notice of Termination. The Lessee shall certify to the Lessor in writing the amount and terms of each bid received by the Lessee and the name and address of the Person submitting a bid (which Person shall not be the Lessee, any Affiliate of the Lessee, or any Person with an agreement to allow Lessee or any Affiliate of Lessee to use the Lessee Property at any time during the three (3) year period following any such termination but may be the Lessor). On Unless Lessor should have delivered a Retention Election, on the Article VI Termination Date, the Lessor shall Date (subject to receipt of the sale net sales price and all additional payments and instruments specified in the next succeeding sentence), (i) the Lessee shall deliver possession of the Property to such highest bidder, and (ii) the Lessor shall, on an "as is, where is" basis and without recourse to or warranty but free and clear by the Lessor, except as to the absence of Lessor Liens and the lien of the Loan Agreement (if and subject to the extent the Lenders are required to release the same)same disclaimers as set forth in Section 7.1, simultaneously therewith sell the Equipment for cash to the bidder which shall have submitted the highest bid prior Property to such date and highest bidder, the Lessor shall be released from all obligations with respect to the Equipment. The total sales net selling price realized at such sale shall to be retained by the Lessor pursuant to this Lease, and, in Lessor. In addition, on the Article VI Termination Date, the Lessee shall deliver to Lessor an instrument in which Lessee agrees not to, and not to permit any Affiliate to, directly or indirectly use the Property during the three (3) year period following the Termination Date and shall pay to the Lessor the sum of (or, in the case of Supplemental Rent, the Person entitled thereto) (iA) the excess, if any, of the Termination Value determined as of the Equipment overTermination Date over the net sales price of the Property paid to the Lessor pursuant to the preceding sentence, plus (B) all accrued and unpaid Basic Rent as of the Termination Date, if any, plus (C) any Make-Whole Amount, plus (D) any Additional Rent then accrued and unpaid as of the Termination Date. Notwithstanding the foregoing, the Lessor may elect to retain, rather than sell, its interest in the Property by giving irrevocable notice to that effect to the Lessee provided that such irrevocable notice (a "Retention -------- --------- Election") is given no later than one hundred twenty (120) days after the -------- receipt of the Notice of Termination. If the Lessor elects to retain its interest in the Property pursuant to this paragraph, on the Termination Date the Lessee shall deliver possession of the Property to Lessor or Lessor's designee and the Lessee shall pay to the Lessor or to whoever is entitled thereto, on the scheduled Termination Date, the amount set forth in clauses (B) and (D) of the preceding paragraph. If the Lessee shall have chosen the option described in clause (y) of the first paragraph of this Section 6.1, on the Termination Date (i) the Lessee shall deliver possession of the Property to the Lessor, (ii) the Lessee shall pay to the Lessor the Basic Term Rent Amount, plus all accrued and unpaid Basic Rent as of the Termination Date, if any, plus any Additional Rent accrued and unpaid as of the Termination Date and (iii) upon delivery of the Property to the Lessor and payment of the amount set forth in clause (ii) above, this Lease shall terminate. Anything in this Section 6.1 to the contrary notwithstanding, the Lessee shall have the right to revoke any Notice of Termination in which the Lessee chose the option described in clause (x) of the first paragraph of this Section 6.1 on not more than two (2) occasions during the Lease Term if, with respect to each such occasion, during the period in which the Lessee had the right to serve as agent for the Lessor to obtain cash bids either (i) there were no cash bids or (ii) all such cash bids were for an amount less than 90% of the Fair Market Sales Value of the Property as set forth in the Appraisal. Lessee shall pay the Lessor's reasonable expenses incurred in connection with the rescinded termination or incurred in connection with the completed termination. If, in connection with any occasion on which the Lessee shall have chosen the option described in clause (x) of the first paragraph of this Section 6.1, an acceptable bid for the Property shall not have been obtained or if a sale shall not have occurred on or as of the Termination Date, then this Lease shall continue in full force and effect until an acceptable bid is obtained and a sale shall have occurred. If the Lessee shall fail to pay all amounts due under and pursuant to this Section 6.1 on the scheduled Termination Date, no sale shall be consummated, this Lease shall continue in full force and effect and it shall be deemed that Lessee has revoked its Notice of Termination. Upon compliance by the Lessee with the provisions of this Section 6.1, the obligation of the Lessee to pay Basic Rent after the Termination Date shall cease, the Lease Term shall end and the obligations of the Lessee hereunder (other than any such obligations expressly surviving termination of this Lease) shall terminate as of the Termination Date. The Lessor shall be under no duty to solicit bids, to inquire into the efforts of the Lessee to obtain bids or otherwise to take any action in connection with any such sale other than to sell its interest in the Property as provided above.

Obsolescence Termination. Unless a Lease Default or a Lease Event of So long as no Default shall have occurred and be continuing, the Lessee shall have the right, on the terms and subject to the conditions contained in this Article VI, at its option at any time time, on at least one hundred eighty (180) days 180 days' prior written notice (a "Notice of Article VI Termination") to the Lessor, the Agent and the Lenders, to terminate this Lease as to all on any Semiannual Rent Payment Date (but not less than all) hereinafter for purposes of the Equipment (this Section 21 called the "Article VI Termination Date"), specified in such notice, provided that (i) on or the Termination Date shall be after the fifth anniversary 20th Semiannual Rent Payment Date and (ii) the Board of the Lease Commencement Date, if such Item or Items Directors of Lessee shall have become Obsoletemade a good faith determination that the Equipment is obsolete or surplus to Lessee's requirements. During the period commencing with from the date on which giving of such Notice of Article VI Termination is given notice until the Article VI Termination Date, the Lessee, as agent for the Lessor, shall use its best efforts to obtain cash bids for the purchase of the Equipment. The Lessor shall also have the right to obtain cash bids for the purchase thereofof the Equipment, either directly or through agents other than the Lessee. The Lessee shall certify to the Lessor in writing the amount and terms of each bid received by the Lessee and the name and address of the Person submitting a bid party (which Person who shall not be the Lessee or any Affiliate of the Lessee but may be the Lessor)Lessee) submitting such bid. On the Article VI Termination Date, the Lessor shall (subject to receipt of the sale price and all additional payments specified in the next sentence), without recourse or warranty but free and clear of Lessor Liens and the lien of the Loan Agreement (if and to the extent the Lenders are required to release the same)warranty, sell the Equipment for cash to the bidder which who shall have submitted the highest bid prior to such date and the Lessor shall be released from all obligations with respect to the Equipmentdate. The total sales sale price realized at such sale shall be retained by the Lessor pursuant to this Lease, and, in addition, on the Article VI Termination Date, the Lessee shall pay to the Lessor (or, in the case of Supplemental Rent, the Person entitled thereto) (i) the excess, if any, of the Termination Value over the sale price of the Equipment overafter deducting all expenses incurred by Lessor in connection with such sale, (ii) any Basic Rent accrued and unpaid on the Equipment to and including the Termination Date and (iii) all Supplemental Rent owing by Lessee under this Lease; provided, however, that the net sales price received by Lessor shall be, under any circumstances and in any event, in an amount at least sufficient to pay in full the aggregate unpaid principal amount of the Secured Notes then outstanding plus the accrued interest thereon. If no sale shall have occurred on or as of the Termination Date, this Lease shall continue in full force and effect. In the event of any such sale and upon compliance by Lessee with the provisions of this Section 21, the obligation of Lessee to pay Basic Rent hereunder for any Semiannual Lease Period ending on or after the Termination Date shall cease and the Lease Term shall end on the Xxxxxxx- tion Date. Lessor shall be under no duty to solicit bids, to inquire into the efforts of Lessee to obtain bids or otherwise take any action in connection with any such sale other than to transfer to the purchaser named in the highest bid certified by Lessee to Lessor or obtained by Lessor, without recourse or warranty, but free and clear of (i) Lessor Liens and (ii) the Lien of the Indenture, all Lessor's right, title and interest in and to the Equipment, against receipt of the payments provided for herein.